“Justice is delivered in courts of law, not by public outcry”

Rule of Law vs. Public Clamour: Insights on Recent Developments

Qs & As

The ground-swell of discontent aided by the famous “Missie Moustass” leaks and highlighted by the disastrous state of public finances and parastatals, is understandably demanding accountability. Against this popular feeling that those responsible for scams and frauds should be brought to justice at the earliest, lies the concern of a new democratic and law-abiding government not to rush things without proper and professional investigations carried out. It is upon this important balance that we have invited our legal eye Lex to comment on and explain.

By Lex

* Following the arrest and detention of Harvesh Seegoolam, former Governor of the Bank of Mauritius, Manou Bheenick, former minister and later Governor of the central bank, expressed hope that Mr Seegoolam would receive a fair trial and not be prematurely judged and condemned by the public merely because of his arrest. He emphasized that law and order, along with due process, must be upheld — contrasting this with the practices under the previous government. How do you respond to that?

Of course, Mr Bheenick is perfectly right. Despite the public clamour for the rulers of the previous regime and their close advisers or friends to be arrested and thrown in jail, the rule of law must prevail. This principle dictates that any person suspected of committing an offence is presumed innocent until proven guilty. Justice is delivered in courts of law, not by public outcry.“Despite the public clamour for the rulers of the previous regime and their close advisers or friends to be arrested and thrown in jail, the rule of law must prevail. This principle dictates that any person suspected of committing an offence is presumed innocent until proven guilty. Justice is delivered in courts of law, not by public outcry…” Pic – Daily Astorian

The present government says it is fully committed to upholding the rule of law and will be acting contrarily to the Jugnauth-led one which he had Navin Ramgoolam arrested in a manner befitting a common criminal by numerous police officers and paraded publicly. Navin Ramgoolam was made a target for a public that had been conditioned to vilify him. Who can forget the treatment meted out to him and his close associates, who were arrested without a shred of evidence against them and thrown into jail, solely to humiliate them.

Time and again, police officers have been reminded that they can only proceed with an arrest when there is reasonable suspicion against a suspect. However, under the Jugnauth regime, this basic principle was disregarded. The police felt compelled to obey political orders and arrest individuals targeted by the then government. The reputations of those victimized by that government were unjustly tarnished. Imagine the psychological trauma endured by these innocent victims.

* As regards the numerous instances of fraud, wrong doings which would have been committed by officials of the previous government, how can the current government ensure accountability for questionable actions by those officials without creating the perception of a political witch-hunt?

Those suspected of wrongdoing and arrested are being interrogated with full respect for their fundamental rights.

In the case of Mr Seegoolam, he was assisted by a lawyer and exercised his right to remain silent, as guaranteed under the Constitution. He was temporarily detained and then released.

Compare this to the treatment inflicted on Navin Ramgoolam, Manou Bheenick, and others under the MSM regime

* What objective criteria should be used to identify officials who may have been involved in wrongful or questionable decisions?

There must be reasonable suspicion. This entails a thorough preliminary fact-finding exercise by the police. It is only when they are satisfied that the standard of reasonable suspicion has been met that they should proceed with an arrest.

What, then, is the standard of reasonable suspicion?

This was explained long ago in a judgment by former judges Ahnee and Boolell, who opined that “a police officer effecting an arrest must take into consideration the totality of the circumstances including the explanations of the suspect and the motive of the declarant. We feel that whatever suspicion the police may harbour against the suspect should be weighed against any factors which tell in favour of the suspect. A total neglect of the explanations that the suspect may have to offer may well lead to the conclusion that the suspicion is not reasonable.”

* On the other hand, would it be advisable to establish legal safeguards to protect officials from unfair victimization while still allowing genuine cases to be pursued?

Many legislations include clauses that grant immunity to public officials. However, this protection applies only when their actions fall strictly within the scope of their duties and the powers conferred upon them.

* On the other hand, the same institutions that the former Opposition accused of being weaponized to target perceived adversaries of the previous government — namely the ICAC/Financial Crimes Commission and the Police, especially the Central CID — will now be tasked with investigating suspected wrongdoing, albeit under new leadership. Can institutions previously accused of political bias ensure impartial investigations under new leadership?

A country may have any number of institutions, but they must perform the roles for which they were designed with total integrity and honesty. Those at the helm of these institutions should resist political influence and pressure. Once established, such institutions are expected to act independently.

Independence, however, is a complex and nuanced concept to define. It embodies a mindset, an attitude, and a commitment to impartiality. The independence and integrity of institutions are inherently tied to the individuals who comprise them. Can these institutions genuinely operate with complete autonomy and uphold the principle of acting without fear or favour? Are they capable of performing their duties with unwavering equanimity, resisting the temptations of easy gain? Moreover, can their members convincingly demonstrate their detachment from the influence of the government of the day, ensuring public trust in their impartiality?

* To ensure a smooth transition without disrupting governance, a new government might wish to balance the need for loyal officials to implement its policies with retaining institutional knowledge and expertise — even when some officials are under suspicion of wrongdoing. How can this balance be effectively achieved?

Governments come and go, but civil servants remain in a Western-style democracy. One notable exception occurred in 1982, when the MSM-PSM government, led by Sir Anerood Jugnauth, Harish Boodhoo, and Paul Bérenger, dismissed top civil servants who had loyally served the government from 1968, when the country attained independence, until 1982. These civil servants were perceived as being too close to Sir Seewoosagur Ramgoolam and the Labour Party.

This time, no such large-scale dismissals have occurred under the present government, except for the departure of a few top civil servants who had already lost their independence under the Jugnauth regime. Any government, however, needs to be able to work with individuals — whether civil servants or advisers — that it can trust

A civil servant should never prioritize private interests over their duty to serve the State through their minister. They must not use their official position to advance personal interests, whether political or financial. In a report on the British Civil Service in 1928, it was stated that a civil servant ‘is not to subordinate his duty to his private interests, nor to make use of his official position to further those interests… The Service exacts from itself a higher standard because it recognises that the State is entitled to demand that its servants shall not only be honest in fact but also beyond the reach of suspicion of dishonesty.’

* Would it be better for an independent body or commission to handle investigations to ensure impartiality and transparency?

There are several approaches that can be considered.

First, suspicious cases can be investigated by the police or the Financial Crimes Commission, with the file subsequently submitted to the Director of Public Prosecutions (DPP) for a decision.

Second, a commission of inquiry may be established to probe cases of bad governance. However, this approach may take a significant amount of time, and no prosecution can be initiated based on the evidence gathered during the commission’s proceedings. This limitation risks making the process a waste of time.

Third, a special tribunal may be set up. Would this tribunal function solely as an investigative body? If so, it would face the same limitations as a commission of inquiry, as its findings would not constitute admissible evidence. On the other hand, if the tribunal is vested with the powers of a court of law to hear and determine cases, it would need to rely on evidence presented by the Office of the Director of Public Prosecutions, which, in turn, would depend on the results of police investigations.

The situation is undeniably complex.

* It is to be expected that investigations will take time depending on the complexity of the different cases in which questionable decisions would have been made, some possibly requiring audit trails. Should there nevertheless an appropriate time-frame within which investigations and transitions should occur to prevent prolonged instability?

The Financial Crime Academy has highlighted the challenges of investigating financial crimes, as follows: “Investigations begin with a mere suspicion that a financial crime has occurred. The financial crime investigation process is not a standard police-type process because there is little initial available evidence that financial crime has occurred. However, in most cases, the financial crime leaves a trail or a series of indicators highlighting that a financial crime has occurred.”

There are several issues surrounding the investigation of financial crimes.

First, there is the complexity of the case. The more complex the case, the longer the investigation is likely to take. Second, the scale of the fraud can significantly impact the time required to investigate. Third, the efficiency, expertise, and available resources of the parties involved in the investigation can impact the timeline.

Fourth, seeking mutual assistance from other countries in cases involving audit trails can be time-consuming. To address this, the Mutual Assistance in Criminal and Related Matters Act has been established to facilitate the widest possible international cooperation. This Act ensures that Mauritius can both give and receive assistance promptly and to the fullest extent in investigations, prosecutions, or proceedings related to serious offences and associated civil matters.

Mauritius Times ePaper Friday 10 January 2025